Court File and Parties
COURT FILE NO.: 264/02 and 265/02
DATE: 20030312
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
RE/MAX ROUGE RIVER REALTY LTD. Creditor (Respondent)
- and -
ROHAN SEEPERSAUD and HASSAN KHALIL ALI Debtor (Respondent)
- and -
RE/MAX EXECUTIVE REALTY INC. (1996) Garnishee (Appellant)
Counsel: David G. Pearce, for the Creditor (Respondent) Mitchell Rose, for the Garnishee (Appellant)
HEARD: March 12, 2003
Oral Reasons for Judgment
ARCHIE CAMPBELL J.: (Orally)
[1] At the outset of the hearing leave was given to Mr. Pearce to represent the respondent corporation Re/Max Rouge which he owns.
[2] The Ali and Seepersaud matters are closely related and were argued together. Re/Max Executive is the garnishee in each case.
[3] In Ali, although there was no explicit finding of a debt, it was implicit in the dialogue between Judge Read and the parties during the proceedings on April 5th. The financial documents that were referred to in the dialogue between the Court and the garnishee's representative Mr. Seto are not before the Court, the appellant secured their removal by way of consent order made this Monday.
[4] From the bottom of page 4 and the top of page 5 of the transcript it appears that Mr. Seto acknowledged that Ali had received over $16,000 from the garnishee and simply argued that his accounts receivable (although the expression "accounts payable" is used) came ahead of the garnishment.
[5] That acknowledgement fully supports the Judge's implicit finding of a debt.
[6] The proceedings were very informal and the reasons are only implicit in the dialogue between the Judge and the parties. It is far from clear from the record that Mr. Seto wanted any further opportunity to argue or to give evidence and he appears on page 5 to accept the determination in respect of garnishment priorities.
[7] Much more could have been done by a further investigation, further evidence, and explicit offers to Mr. Seto to give evidence. It appears however from the record that Mr. Seto went away understanding fully why the ruling had been made against him, on the basis of the documents in his possession and his own acknowledgements and the Judge's ruling that the garnishee took priority over the accounts receivable.
[8] Taking the proceedings as a whole, it is difficult to say that the informality resulted in any denial of natural justice or any substantial wrong to the appellant.
[9] The remedy, adding the garnishee to the original September 7th judgment, was a very practical solution in light of the upcoming judgment/debtor examination. The remedy simply had the practical effect of fast-tracking the judgment/debtor procedure and eliminating some unnecessary procedural expense and delay. The remedy although procedurally novel discloses no error in law.
[10] The record discloses no reasonable apprehension of bias.
[11] For these reasons, the Ali appeal, #265/02 is dismissed.
[12] As for the Seepersaud appeal, #264/02, there is no implicit finding, no acknowledgement of the debt by the garnishee. There is indeed a denial of any debt. In the absence of any evidentiary basis in Seepersaud for a finding of a debt, the appeal must be allowed and the matter remitted to the learned Judge for a re-hearing. An order will go that any monies held by the Toronto Small Claims Court, pursuant to execution proceedings against executives in T39195/01 (Seepersaud) shall be paid forthwith to Re/Max Executive Realty.
[13] Because success is divided, there will be no order as to costs. Approval of the form and content of the order is dispensed with. The appellant shall take out the order.
Date of Reasons for Judgment: March 12, 2003
Date Released: March 24, 2003
COURT FILE NO.: 264/02 and 265/02
DATE: 20030312
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
RE/MAX ROUGE RIVER REALTY LTD. Creditor (Respondent)
- and -
ROHAN SEEPERSAUD and HASSAN KHALIL ALI Debtor (Respondent)
- and -
RE/MAX EXECUTIVE REALTY INC. (1996) Garnishee (Appellant)
ORAL REASONS FOR JUDGMENT
ARCHIE CAMPBELL J.
Date of Reasons for Judgment: March 12, 2003
Date Released: March 24, 2003